Judge allows Crown to recall two witnesses in Klansman gang trial with seven safeguards

On Monday, the court granted the prosecution permission to call back two witnesses as it continues its effort to have a statement from a witness who has since died accepted in the trial of 25 men said to belong to the Tesha Miller wing of the Klansman gang.

Justice Dale Palmer, who is hearing the case without a jury, also set out seven conditions the Crown must follow. He described those limits as safeguards while additional testimony is taken.

The decision came after extended legal argument over whether the written account of Shanice Roberts—who is no longer alive—can be used regarding the February 2020 killing of Noah Smith at Yarico Place in St Andrew.

Bringing the two witnesses back to the stand is tied to the Crown’s Section 31(D) application under the Evidence Act. That provision can allow a witness’s prior statement to be used when the person cannot give live evidence, for reasons such as death, illness, travel abroad, or inability to be located after reasonable search.

Both witnesses had already testified about their contact with Roberts before she died. The Crown’s wider aim is to have Roberts’s statement admitted in connection with counts 15 and 16 on the indictment.

Roberts passed away in February 2021 from health-related causes. Before her death, she had given police a statement about the murder of Smith on Friday, 7 February 2020.

In explaining his ruling, Justice Palmer said the issue at this point was not whether Roberts’s statement itself is admissible. Rather, he said, the question was whether the Crown—having already finished with the two witnesses—should be allowed to recall them to clarify the link between the person from whom a detective constable took the statement and the person a second witness, who knew Roberts well, identified as Roberts.

Defence counsel argued during submissions that the detective constable’s evidence was not strong enough. They said the woman shown in a photograph entered as an exhibit was not the same person the officer interviewed on the night of the killing. Lawyers fighting to exclude the statement also said the image was too unclear for the officer to make out her features reliably.

The second witness, who knew Roberts personally, told the court that despite the poor quality of the photograph, she was confident the person shown was Roberts.

Justice Palmer accepted on Monday that the defence had raised valid concerns. Even so, he said, “this not a case where the defence has closed its case, nor is it a case where the Crown seeks to respond to a fully developed defence case. It is true that the defence has exposed the weakness of the blurry image through cross-examination, and that is a factor which weighs against the Crown and is a fact that I should consider in the substantive determination of the voir dire, but it does not make the application automatically unfair”.

Stressing that “all the other evidence has been led” by the prosecution, he said “the difficulty arose because the photograph became an uncertain vehicle by which this nexus could be created on the two strands of evidence — that is the strand that spoke to the fact of a statement being taken from a Shanice Roberts and the strand that speaks to a Shanice Roberts, who is deceased, were not adequately connected. The proposed recall is therefore not to introduce an entirely new factual foundation, but to address a confined evidential gap in the foundation already laid”.

He listed seven restrictions on how the recall may proceed, stating, “I therefore find that the probative value of the recall outweighs the risk of prejudicial effect, provided that recall is subject to the strict safeguards that are imposed”. He added that the defence would be able to cross-examine the witnesses in full.

Justice Palmer also barred the prosecution from contacting the two witnesses directly before they return. He made clear that allowing the recall did not settle the Section 31(D) application overall.

“The Crown still bears the burden of satisfying the court of the statutory requirements… and the defence remains free to make their submissions…” he said.

Among those on trial are Michael Wildman, Jerome Spike, Nashuan Guest, and Geovaughni McDonald. They face charges of knowingly facilitating the robbery and murder of Smith.

The matter resumes on Tuesday at 10:00 a.m. in the Home Circuit Division of the Supreme Court in downtown Kingston.